Item 1 Software Services
The ‘Software Services’ consist of the provision of access to and the use of the Sherlok Platform on a software as a service basis for the purposes of:
(a) assisting with the retention of Your Clients, including by allocating that client an internal retention score to identify the likelihood of that client refinancing; and
(b) assessing Your Clients’ current loan products to:
(i) identify whether the interest rates can be repriced with the current lender (Repricing Assessment); and
(ii) compare them against the other loan products available in the market from those lenders that you have selected in your lender control panel (noting you are responsible for selecting and maintaining this list of lenders) to identify whether there are alternative favourable loan refinancing options (Refinancing Assessment); and
(c) identifying for you those of Your Clients that may have the option of repricing their Loan Products or may have other refinancing options available to them.
The above features of the Sherlok Platform will then allow you to discuss the loan products identified as part of the Repricing Assessment or Refinancing Assessment with Your Client.
You are responsible for advising Your Client on the suitability of any loan products identified through the Software Services (including via the Repricing Assessment or Refinancing Assessment tools).
Item 2 Our Assumptions
The terms and pricing set out in this Agreement are based on the following assumptions:
• You acknowledge that we are not providing financial or credit advice. Any loan products identified using the Software Services, including the Repricing Assessment or Refinancing Assessment results may not be suitable for Your Clients.
• You are responsible for providing the Broking Services, which includes advising Your Clients about the suitability of any loan products that are identified using the Software Services, including the Repricing Assessment or Refinancing Assessment tools.
• You will provide us with all information about Your Clients, including personal information of Your Clients, that we reasonably require to provide the Services (including information about the Your Clients’ current loan products). You have obtained all necessary consents, and made all necessary disclosures, to permit our use of Your Clients’ personal information in accordance with the terms of this Agreement.
• The Content you provide to us will be up-to-date, accurate and complete.
• You will ensure:
o that your Users are equipped with a computer, mobile phone, tablet or other internet-enabled device for use with the Software Services; or
o that you and your Users will maintain an active internet connection to be used by you and the Users in connection with the Software Services;
• You will select your lender control panel (i.e. the list of lenders that you wish to use) and keep it up to date at all times.
• You will ensure that you hold and maintain all necessary accreditations, qualifications, licences, obligations and other authorisations with each of the lenders and financial institutions in your lender control panel, including to access repricing information and refinance Your Clients.
• You will ensure that you hold and maintain all necessary accreditations, qualifications, licences, obligations and other authorisations necessary to provide credit advice to Your Clients.
Item 3 Fees
The monthly service fee for the Services is payable on and from the Start Date as follows:
(a) for all Users paying monthly, payable monthly in arrears and calculated as follows:
Fee per User: Refer to your subscription managing in portal or the website pricing page
Number of Users (as at the Start Date): 1 per account
Total monthly service fee: Fee Per User x Number of Users
(b) for all Users paying annually, payable annually in advance on and from the Start Date and calculated as follows:
a. annual fee minus annual discount
(c) The monthly service fee that you pay will provide you with up to:
(i) Refer to Subscription details in account settings for the subscription you have selected
(iii) The following payment arrangements apply to all Users you wish to add, remove or replace during the Term.
(a) You must give us no less than 5 Business Days’ notice of if you wish to replace, add or remove a User and notify us whether:
(i) whether you wish to replace, add or remove a User and provide details of the new User. If you are replacing a User, you must also notify us of the replacement User’s details;
(ii) of the date on which you wish to add, remove or replace the new User, which may be at the start of the next Renewal Term or part way through the then current Initial Term or Renewal Term; and
(iii) whether you wish to pay for that new User 12 months in advance (and receive the monthly discounted rate) or on a monthly basis.
(b) If you wish to replace a User with a new User, we will re-issue the login details for that User and your fees payable for that User will continue uninterrupted (eg, if you paid 12 months in advance for that User the replacement User will receive the balance of the 12 month payment term paid for the original User).
(c) If you choose to add the new User on a monthly payment basis, the Fees for that User will be payable monthly in arrears on the first day of each Renewal Term. The Fee for that User will be the then current non-discounted rate (as published on our website from time to time). If the User is given access to the Sherlock Platform part way through the Initial Term or a Renewal Term, the full monthly fee/ a pro-rated fee calculated for the period within the term that the User is given access to the Sherlok Platform will be payable for that User for that term.
(d) If you wish to add the new User on a 12 monthly payment basis:
(i) the Fees for that User are payable annually in advance on the first day of the Renewal Term following the date we give the New User access to the Sherlok Platform. The 12 month fee for that User will be the discounted fee for 12 months payments in advance as published on our website at that time; and
(ii) if we give access to that User part way through the Initial Term or a Renewal Term, you must also pay in addition to, and at the same time you pay, the 12 month fee, the full monthly fee/ a pro-rated fee calculated for the period within the term that the User is given access to the Sherlok Platform, calculated based on the monthly discounted amount.
(e) If you remove a User part way through the Initial Term or a Renewal Term, you must still pay the full amount of the fees for the remainder of that term and if you paid 12 months in advance for that User, clause 9.1(d)(ii) will apply to the Fees payable with respect to that User.
IMPORTANT NOTE: If you elect to pay for 12 months in advance for a User’s access to or use of the Sherlok Platform in order to receive a discount, you will only receive the benefit of that discount if you do not terminate that User within the relevant 12 month period. Please see clause 9.1(d) of the Terms and Conditions for further information.
Item 4 Restrictions The following restrictions apply in respect of the Software Services:
(a) You will only receive the number of Repricing Assessments, Refinancing Assessments, Leads and broker generated repricing requests (per month, per User) that are included within the pricing package you have selected, as specified in Item 3 above;
(b) You may only use the Software Services for the benefit of Your Clients;
(c) The Software Services cannot be used as a bureau service (e.g. another broker cannot engage you to on-provide the Software Services for the benefit of that broker’s clients);
(d) Each person that accesses the Sherlok Platform must have an active valid licence for the month that they access and use the Sherlok Platform.
(e) The maximum number of Users is the amount you have paid Fees for, as set out in Item 3 above.
(f) Your Users must only access the Sherlok Platform from within Australia, except with our prior written consent, which may be given or withdrawn in our discretion and may be subject to conditions.
Sherlok Platform Agreement
Terms and Conditions
(a) This Agreement applies to the supply of Deliverables by Sherlok Technology Pty Ltd ABN 55 622 971 402 to you (as defined in clause 3.1 below).
(b) By clicking the ‘I accept the terms and conditions’ box or button (or similar) when signing up to receive the Software Services from us, you accept and agree to be bound by the terms of this Agreement.
(c) The individual that clicks the ‘I accept the terms and conditions’ box personally warrants and represents that they have capacity to enter this Agreement on your behalf, and bind you to this Agreement.
A. We are the provider of an automated client retention tool for mortgage brokers.
B. You are a firm of mortgage brokers that facilitate financing arrangements from lenders on behalf of your clients.
C. You have requested that we provide you with the Services under this Agreement to assist you in connection with those clients to whom you provide the Broking Services.
3 Definitions and interpretation
In this Agreement, all capitalised terms described in the Service Details have the meaning given to them in the Service Details and (unless the context requires otherwise):
Agreement means the Service Details, these terms and conditions, the Schedules to the terms, and any other applicable terms that we include with our products and services on our website (including product information sheets) at the time you enter this agreement;
Broking Services means the financing broking services that you provide to Your Clients, which includes advising Your Clients on the suitability of any loan products identified using the Software Services, including via the Repricing Assessment or Refinancing Assessment tools;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the Customer’s location specified in the form submitted to us when signing up for the Software Services
Change of Control occurs when a person acquires Control of an entity;
Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation or threat of a claim;
Commencement Date means the date that you accept this Agreement by clicking the ‘I accept the terms and conditions’ box or button (or similar) when signing up for the Software Services;
Confidential Information means the terms of this Agreement and all information belonging or relating to a party to this Agreement, whether oral, graphic, electronic, written or in any other form:
(a) that is, or should reasonably be regarded as, confidential to the party to whom it belongs or relates; or
(b) that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement;
Content means any data, information, content or other material which:
(a) is uploaded by you or the Users via the Software Services, including any information about the Broking Services (including information about Your Client);
(b) is provided by you to us to upload for access through the Software Services, including any information you provide to us about the Broking Services; or
(c) is processed via the Software Services,
but excludes any information, content or material (including the Documentation) that we have provided to you and Content Outputs;
Content Outputs means any De-Identified Data, any combination, compilation, aggregation, analysis or report of any De-Identified Data and any other data, information, content or other material that is generated from the Content by us (including any Repricing Assessment and Refinancing Assessment options);
Control includes the power to directly or indirectly:
(a) dictate the management or policies of the company; or
(b) control the membership of the board of directors,
whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights, and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stock of that party or otherwise;
CPI means the Consumer Price Index, Australia, All Groups, Weighted Average of Eight Capital Cities, published by the Australian Bureau of Statistics and, if that index ceases to be published, an alternative consumer price index nominated by us;
Defect means any characteristic that makes the whole or any part of the Software Services wholly or partly inoperable;
De-Identified Data means any data, information, content or other material that has been de-identified by us so that it does not identify you or Your Clients;
Deliverables means the Services, the Documentation and the Content Outputs;
Documentation means any manuals and other materials (whether in printed or electronic format) relevant to the operation of the Sherlok Platform, including user manuals, programming manuals, modification manuals, flow charts, drawings, instructions and any similar documentation which have been prepared by or on behalf of us to assist or supplement the understanding or application of the Sherlok Platform;
Force Majeure Event means:
(a) natural disasters, acts of terrorism, riots, civil disturbances, pandemics, epidemics, industrial disputes and strikes;
(b) interruption or breakdown in telecommunications networks or the internet that are beyond our control; and
(c) any other event which is outside of the reasonable control of the party claiming that the event has occurred;
Help Desk has the meaning given to that term in Item 25 of Schedule 1;
Insolvency Event means, in respect of a party, any one or more of the following events or circumstances:
(d) a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;
(e) that party having a receiver or receiver and user appointed over any of its property or assets, or an administrator, liquidator or provisional liquidator appointed to that party;
(f) being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act 2001 (Cth) or any other applicable Law;
(g) seeking protection from its creditors under any applicable Law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or
(h) any analogous event or circumstance to those described in paragraphs (a) to (d) above under any applicable Law of any jurisdiction,
unless such event or circumstance occurs as part of a solvent reconstruction, amalgamation, compromise, arrangement, merger or consolidation approved by the other party;
Initial Term means the period commencing on the Commencement Date and ending 1 month after the Start Date;
Intellectual Property Rights means all statutory and other proprietary rights whether registered or unregistered (including rights to require information be kept confidential) in respect of know-how, trade secrets, copyright, trademarks, design, patent, semiconductor or circuit layout rights and any application for registration or registration of those rights;
Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct;
Lead means one of Your Clients that we identify through a Repricing Assessment or Refinancing Assessment for you to consider a possible change to their loan product that you have currently arranged for them;Loss means any loss, damage, liability, charge, expense, outgoing or cost (including all legal and other professional costs on a full indemnity basis) of any nature or kind;
Non-Excludable Guarantee has the meaning given to it in clause 15.5(a);
Notifiable Data Breach means an ‘eligible data breach’, as that term is defined by the Privacy Act, and any other suspected or actual circumstance that a party is required to notify to a third party under a Privacy Law;
Password means the code required to obtain access to the Software Services;
Permitted Purpose means (i) for us to provide the Deliverables and otherwise perform our obligations under this Agreement, (ii) to improve our products and services, (iii) the use, correction, re-ordering and transformation of the Content for the purposes of the creation and use of Content Outputs, and (iv) such other purposes agreed between the parties from time to time;
Personal Information has the meaning given to it in the Privacy Act;
Personnel means a party’s officers, employees, agents, contractors and subcontractors;
Privacy Act means the Privacy Act 1988 (Cth), including the Australian Privacy Principles;
Privacy Law means in relation a Party:
(a) the Privacy Act;
(b) all other Laws regulating access to or Processing of Personal Information which that Party is required to comply with from time to time; and
(c) all other Laws regulating access to or Processing of Personal information which apply to the other Party and which the other Party has notified in writing to the first mentioned Party;
Processing (or Process) means collection, use, adaption, alteration, storage, transfer, disclosure, or any other handling of Personal Information;
Refinancing Assessment has the meaning given to that term in Item 1 of the Service Details;
Renewal Term has the meaning given to that term in clause 4(b);
Repricing Assessment has the meaning given to that term in Item 1 of the Service Details;
Restrictions means the restrictions on your use of the Software Services, as set out in Item 4 of the Service Details;
Scheduled Outages means any outage of the Software Service which we notify you of at least 1 Business Day in advance;
Service Details means the service details set out in the table at the front of this Agreement;
Service Levels means the service levels which are set out in Schedule 2 to this Agreement;
Services means all services provided by us to you under this Agreement, including the Software Services and the Support Services;
Sherlok Platform means the software and hardware as integrated and deployed by us on hosting infrastructure that we make available to you for online access and use by you and your Users;
Start Date means the day after your free trial of the Sherlok Platform ends (if any);
Support Hours means 9am to 5pm in the Customer’s location specified in the form submitted to us when signing up for the Software Service;
Support Services means the maintenance and support services which are described in Schedule 1;
Term means the Initial Term and all extensions under clause 4(b), unless terminated earlier in accordance with its terms;
Users means your Personnel to whom we provide account credentials to use Software Services;
We, Us or Our means Sherlok Technology Pty Ltd ABN 55 622 971 402;
You, Your or Customer means the customer of the Software Services, as identified in the form submitted to us when signing up for the Software Services;
Your Client means a client to whom you provide Broking Services and for whom you have provided us with their details so that we can perform the Software Services in respect of them; and
Your System includes your entire computer and information technology network and infrastructure (including hardware, software, firmware, communications platforms, cabling and any parts or components of any of the foregoing).
In this Agreement (unless the context requires otherwise):
(a) headings are used for convenience only and do not affect the interpretation of this Agreement;
(b) other grammatical forms of defined words or expressions have corresponding meanings;
(c) a reference to a party is to a party to this Agreement;
(d) a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(e) if something is required to be done on a day that is not a Business Day, then it must be done on the next Business Day;
(f) the word “person” includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(g) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; and
(h) if there is an inconsistency between the Service Details (including the Special Conditions) and these terms and conditions, the Service Details prevail to the extent of the inconsistency.
(a) This Agreement commences on the Commencement Date and continues for the Initial Term (unless extended or terminated in accordance with its terms).
(b) At the end of the Initial Term, this Agreement will automatically extend for successive periods of 1 month each on the existing terms and conditions (including price) (each a Renewal Term), until it is terminated in accordance with its terms.
(a) We agree to supply the Services and associated Documentation to you, and you agree to acquire them from us, at the prices and on the terms of this Agreement.
(b) The supply of the Services is subject to the Restrictions and Our Assumptions.
(a) We will promptly implement the Sherlok Platform ready for use by you as part of the Software Services after the Commencement Date.
(b) You must work with us promptly and in good faith (including by providing all information and assistance we request) to allow us to complete the creation and set up of your access to the Sherlok Platform, as scheduled by us. Charges may apply if the information you provide us is incomplete or inaccurate.
(c) We will notify you when the Sherlok Platform is ready for use by you and your Users.
(d) Access to the Sherlok Platform will be via a website.
(e) Each of your Users will be assigned a Password to enable them to access the website.
5.3 Software Services
(a) The Software Services are supplied to you on a non-exclusive and non-transferable basis.
(b) We will provide the Software Services with due care and skill, but do not guarantee they will be continuous or fault free.
(c) You may use the Software Services for the benefit of Your Clients and you acknowledge and agree that:
(i) the Sherlok Platform is only a tool to assist with client retention, but it does not guarantee client retention;
(ii) the primary purpose of the Refinancing Assessment and Repricing Assessment tools are to enable you to engage in discussions with Your Clients;
(iii) any loan products that are identified using the Software Services (including via the Refinancing Assessment or Repricing Assessment tools) may not be suitable to Your Clients, and we do not recommend any particular loan products given that we do not know the personal circumstances of Your Clients;
(iv) you are responsible for advising Your Clients on the loan products that are identified using the Software Services (including via the Refinancing Assessment and Repricing Assessment tools), including the suitability and risks of those products;
(v) we are not responsible for the any financial decisions that Your Client makes as a result of the Software Services, including the Refinancing Assessment or Repricing Assessment tools; and
(vi) we do not provide financial advice, broking services or act as a mortgage broker for Your Clients, and you are responsible for providing any Broking Services to Your Clients.
(d) Your access to the Sherlok Software is only permitted through the Sherlok Platform and only as a non-perpetual ongoing fee based solution. Failure to pay the required fees by the required dates may result in restrictions of use.
5.4 Maintenance and support
(a) We will provide the Support Services to you.
(b) From time to time, the Software Services will be unavailable due to maintenance. Reasonable endeavours will be taken to program Scheduled Outages so as to limit their impact on your business.
(c) You acknowledge that Software Services may be interrupted by factors beyond our direct control and that we will have no liability for such Software Service interruptions.
5.5 Service Levels
(a) We will endeavour to provide the Software Services and Support Services in accordance with the Service Levels, however, we will not be liable to you for any Loss suffered by you through our failure to meet the Service Levels.
(b) It will not be considered a failure to meet the Service Levels to the extent that such failure is caused by: (i) faults in any part of Your System; (ii) a breach of this Agreement by you; (iii) a Force Majeure Event; (iv) your negligent or fraudulent acts or omissions, or those of your Personnel; (v) your, or your Personnel’s, use of any of the Software Services in a manner that is contrary to the Documentation; or (vi) unavailability of the Software Services due to Scheduled Outages.
5.6 Other services
From time to time, you may request that we provide additional services in connection with the Services. If we agree to do so, we may charge you additional fees which will be based on our (or our third party supplier’s) then current rates and charges. Additional terms and conditions may also apply. We will provide all relevant information, including terms and costs, in a written proposal to you.
5.7 Change of Control
(a) A Change of Control of the Customer will constitute an assignment requiring our prior written consent.
(b) We will not unreasonably withhold our consent to an assignment of this Agreement to a related company or successor company operating the same business.
(c) You must notify us as soon as practicable of any proposed Change of Control or transfer of your business to which this Agreement relates.
6 Modifications and updates
(a) We may modify or update the Software Services, at any time during the Term, by giving you prior reasonable notice.
(b) If, in your reasonable opinion, a modification or update has a material and adverse impact on the features and functionalities of the Software Services, you may terminate this Agreement, provided you give us written notice of such termination within 5 Business Days of the implementation of the relevant modification or update.
(a) You must only provide Password information and permit access to and use of the Software Services by Users in accordance with the applicable Restrictions.
(b) Only a User who has been granted a Password may access and use the Software Services.
(c) Each User must maintain the security and secrecy of their Password.
(d) A User must not permit any other person to access, use or modify the Software Services by using that User’s Password.
7.2 Third party content
The Software Services may link to third party websites or feeds which are connected or relevant to the Software Services (including loan products offered by lenders). The availability of any link from the Software Services does not imply that we endorse, approve, recommend, or accept responsibility for, those websites or feeds, or their content or operators. To the maximum extent permitted by Law, we exclude all responsibility and liability for those websites and feeds.
8 Your obligations
Without limiting your other obligations under this Agreement, you:
(a) must provide us with all information, material and assistance we request to enable us to provide the Services to you;
(b) must use the Software Services in accordance with the Documentation and our directions;
(c) must comply with the Restrictions and all applicable Laws when using the Deliverables;
(d) must obtain or procure all necessary rights to use the Content and associated data that will be used in connection with the Software Services;
(e) are solely responsible for recommending and advising Your Clients on any loan products that are identified through the use of the Software Services, including the Refinancing Assessment and Repricing Assessment tools;
(f) without limiting the previous paragraph, are solely responsible for providing the Broking Services;
(g) must ensure that Your System complies with the relevant specifications notified by us from time to time;
(h) must not undermine the operation, security and integrity of the information technology infrastructure in which we deploy the Sherlok Platform, including by introducing any virus, malicious code or other similar item in the Sherlok Platform;
(i) must not use the Sherlok Platform in any way that may impair the ability of our other customers to use the Sherlok Platform that we deploy for their use;
(j) must not use the Sherlok Platform to view, access or copy any material or data other than that which you are expressly authorised to access;
(k) must not access or use the Deliverables for the purpose of creating a product or service which competes with the Software Services;
(l) must not resell, resupply or share the Deliverables;
(m) must not permit third parties to access or use the Deliverables, except as authorised by us in writing;
(n) are solely responsible for selecting, supplying and maintaining your own facilities and equipment (including Your Systems and access to the internet) for use in connection with the Software Services; and
(o) are solely responsible for any use of the Deliverables by you or any third party, whether authorised or not.
9 Fees and payments
9.1 Fees and payments
(a) You must pay us the Fees set out in this Agreement for the Services.
(b) Unless otherwise stipulated, the Fees do not include GST and you must pay applicable GST in addition to the Fees.
(c) The Fees will be billed at the time specified in the Service Details.
(d) If you elect to pay Fees for 12 months in advance (rather than on a monthly basis), then you acknowledge and agree that:
(i) the Fee payable is based on a discounted rate on the basis that this Agreement, and each User’s access to and use of the Services, will continue for that 12 month period;
(ii) if this Agreement is terminated or a User removed prior to that 12 month period ending, then:
(A) the discounted rate will not apply;
(B) you will pay us the Fees for the Initial Term and each Renewal Term that fall within that 12 month payment period, based on our usual non-discounted monthly rates (as published on our website during that period) as though you had paid on a monthly basis and received no discount for paying 12 months in advance;
(C) if the amount that you have paid to us is more than the amount owing to us under clause 9.1(d)(ii)(B) above, we will issue you with a refund calculated as the difference between the amount owing to us under clause 9.1(d)(ii)(B) above and the amount you paid for that 12 months; and
(D) if the amount that you have paid to us is less than the amount owing to us under clause 9.1(d)(ii)(B) above, then you must pay us the difference between the amount owing to us under clause 9.1(d)(ii)(B) above and the amount you paid for that 12 months.
(e) Subject to clause 9.1(f), you must pay all amounts payable to us under this Agreement within 14 days of the date of invoice or as otherwise notified in writing.
(f) If a genuine dispute arises regarding the amount of a Fee, you may suspend payment of the disputed amount pending resolution of the dispute but you must pay all other amounts in accordance with this clause 9.
(g) We may charge you interest (calculated on a daily basis) on any unpaid amount overdue by more than 14 days at:
(i) the rate of two percent (2%) per annum above the published current lending rate for business overdrafts specified by the bank that we ordinarily use for our business purposes; or
(ii) a comparable rate nominated by us from time to time.
9.2 Audit rights
(a) From time to time we may require an audit of relevant records to verify your accurate disclosure of any information which is required to enable the calculation of Fees payable to us and to verify your compliance with other obligations under this Agreement.
(b) The audit may be conducted by our officers and/or employees and/or third parties engaged by us to assist with the audit.
(c) You will provide access to and provide copies of any information required in connection with the audit and will ensure that all other relevant parties also provide access to and copies of information required for the purposes of the audit.
(d) If the audit reveals that you have underpaid Fees or identifies any other non-compliance with this Agreement, then you must:
(i) promptly pay any underpayment of Fees to us together with interest, calculated in accordance with clause 9.1(g);
(ii) remedy any other non-compliance with those obligations; and
(iii) pay us an amount equivalent to the costs we have incurred in connection with the conduct of the audit.
10 Pricing and terms variations
(a) The Fees are based on Our Assumptions which are set out in the Service Details. If, at any time during the Term, we determine (in our reasonable discretion) that Our Assumptions are incorrect in any respect, we may increase the Fees by giving you no less than 30 Business Days’ notice.
(b) We may in our discretion review and increase fees in line with CPI movement, provided that such increases are not made more than annually.
(c) We may amend the Restrictions at any time during the Term, if we are required to do so by any third party supplier or by Law.
(a) If one party (in this clause 11, the supplying party) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the GST-exclusive consideration (in this clause 11, the receiving party) must also pay an amount (in this clause 11, the GST amount) equal to the GST payable in respect of that supply.
(b) Subject to first receiving a tax invoice or adjustment note as appropriate, the receiving party must pay the GST amount when it is liable to provide the GST-exclusive consideration.
(c) In this Agreement terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (in this clause 11(c), the GST Act) have the meaning given in the GST Act, unless the context makes it clear that a different meaning is intended.
12 Content ownership
(a) We acknowledge and agree that all rights, title and interest in and to the Content will at all times remain owned by you, Your Clients or the licensors of that Content.
(b) You represent and warrant that you and your Users will only upload and use Content where permitted, duly licensed and authorised by any relevant third parties to do so (including Your Clients).
(c) You grant to us a worldwide, non-exclusive, non-transferable perpetual licence to (i) use, adapt, modify, reproduce, reformat, transform and process the Content for the Permitted Purpose and (ii) to use any Intellectual Property Rights in the Content, to the extent necessary to undertake such activities.
(d) You are responsible for ensuring the accuracy and completeness of Content uploaded to the Sherlok Platform by you or your Users.
(e) You acknowledge that Content may be stored by a third party hosting service provider. We will only appoint third party hosting service providers (or undertake hosting of Content ourselves) if reasonable industry standard measures are in place with respect to the security and integrity of Content.
(f) You may extract Content from the Sherlok Platform in order to comply with your obligations under any Law (if any). You must ensure that the timing, frequency and all other aspects of the extraction of Content do not disrupt our operations or the operations of any third party hosting service provider. You must promptly suspend and modify any Content extraction process if we notify you that the process is disrupting our operations or the operations of any third party hosting services provider.
(g) If you require our assistance with respect to the extraction of any Content, then this will be treated as a Support Service and may be subject to additional fees and charges.
(h) Nothing in these terms and conditions will inhibit your right to continue to use and deal with any Content uploaded to the Sherlok Platform by you or your Users for the purpose of your usual business activities.
(i) You must permit us at all reasonable times to audit the Content and your use of the Content.
(j) All Content Outputs will be owned by us.
13 Intellectual Property Rights
(a) You agree that we and/or our licensors own all Intellectual Property Rights in the Deliverables, including all developments, changes, modifications and updates made to the Deliverables (in this clause 13, the Proprietary IP). Except as expressly granted under this Agreement, nothing in this Agreement transfers ownership (or otherwise grants you any right) in respect of the Proprietary IP.
(b) You must not do, omit to do, attempt to do, or allow anyone to do anything which infringes the Proprietary IP, including:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute any part or all of the Deliverables (as applicable) in any form or media or by any means; or
(ii) decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part or all of the Software Services,
(iii) as expressly permitted by non-excludable Laws; or
(iv) with our prior written consent.
If you provide us with ideas, comments or suggestions relating to the Deliverables (in this clause 13.2, the Feedback):
(a) all Intellectual Property Rights in the Feedback and anything created as a result of that Feedback (including materials, enhancements, modifications or derivative works) will be owned by us and/or our licensors (at our election) on creation; and
(b) we may use or disclose the Feedback for any purpose.
13.3 Further actions
You agree to execute all documentation necessary in order to give effect to clauses 13.1(a) and 13.2 above, and (if applicable) to cause your Users to execute such documentation.
14 Third party IP claims
(a) We indemnify you against any direct Loss incurred by you as a result of a Claim by a third party against you that the Deliverables and any material provided by us under this Agreement (excluding any Content) infringe the Intellectual Property Rights of the third party, subject to you:
(i) not entering into any settlement discussions of any nature or taking any action in relation to the Claim, without our prior written consent;
(ii) allowing us and our third party supplier to direct any defence and settlement of the Claim;
(iii) providing us and our third party supplier with all reasonable assistance and information required by us or our third party supplier in connection with the defence and settlement of the Claim;
(iv) using reasonable efforts to mitigate the Losses associated with the Claim; and
(v) notifying us in writing of the Claim and your request for indemnification under this clause 14(a) within 20 Business Days of being notified of the Claim by the third party.
(b) Where any person makes a Claim for Intellectual Property Right infringement in connection with the provision of the Deliverables or materials by us, we may modify, limit, suspend or cancel the provision of the Deliverables or materials, if required, in response to the Claim.
(c) The indemnity in this clause 14 does not apply to the extent the Claim:
(i) arises out of any misuse or modification of any material provided by us;
(ii) relates to services or materials provided by a third party in conjunction with the Services; or
(iii) is caused, or contributed to, by you and/or your Personnel or Users.
15.1 Exclusion of Warranties
Subject to clause 15.5 below, to the maximum extent permitted by Law, we do not warrant that:
(a) the Software Services or the Sherlok Platform will operate free of errors, defects or in an uninterrupted manner;
(b) the Software Services or the Sherlok Platform is compatible or will interoperate with any particular computer system, equipment, software (including operating systems) or data format;
(c) the retention score for each of Your Clients will be accurate or guarantee that Your Client will not refinance elsewhere;
(d) the loan products identified using the Software Services, including as part of the Refinancing Assessment or Repricing Assessment will be suitable to Your Clients’ individual circumstances (an you agree the suitability of the options is for you and Your Clients to assess); or
(e) the Software Services or the Sherlok Platform will ensure the retention of Your Clients, noting it is only a tool to assist with client retention.
15.2 Implied terms
Subject to clause 15.5 below, to the maximum extent permitted by Law, all representations, warranties, conditions, guarantees, indemnities or undertakings that would be implied in, or affect, this Agreement by legislation, common law, tort, equity, or by course of performance, dealing, trade, custom or usage are excluded.
15.3 Liability cap
Subject to clause 15.5 below, to the maximum extent permitted by Law, our total aggregate liability to you in respect of any Claim arising under or in connection with this Agreement, whether in contract, statute, tort (including negligence), equity or otherwise, is limited to the Fees paid by you to us under this Agreement during the preceding 12 months.
15.4 Limitation of Liability
Subject to this clause 15.5 below, to the maximum extent permitted by Law, we are not liable to you or any other person for:
(a) defects, errors, service interruption, failure or delay in respect of or caused by any Software Services;
(b) any special, indirect or consequential Loss, loss of profits, loss of opportunity or loss or corruption of data incurred by you under or in connection with this Agreement (whether arising under contract, in tort (including negligence) or otherwise), irrespective of whether you previously notified us of the possibility of such Loss;
(c) any financial decisions that Your Clients make based on the information provided through the Software Services, including the Refinancing Assessment or the Repricing Assessment; or
(d) the Broking Services, which you acknowledge are provided by you to Your Clients.
15.5 Non-Excludable Guarantee
(a) Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) or any other applicable Law that cannot be excluded, restricted or modified by agreement (Non-Excludable Guarantee).
(b) To the maximum extent permitted by law, our liability for breach of a Non-Excludable Guarantee is limited, at our option, to: (a) in the case of goods, any one or more of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or (b) in the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
You indemnify us against all Claims and Losses suffered or incurred by us that are caused by or arise from:
(a) any breach of this Agreement by you; or
(b) any negligent or unlawful act or omission by you, your Users or Your Clients,
except to the extent such Claim or Loss was caused or contributed to by Sherlok or our Personnel.
17.1 Termination for breach
A party may terminate this Agreement immediately by giving the other party written notice if the other party:
(a) is the subject of an Insolvency Event, except to the extent that a stay on the exercise of such a right applies under sections 415D – 415G, 434J – 434M or 451E – 451H of the Corporations Act 2001 (Cth); or
(b) breaches this Agreement and:
(i) the breach is incapable of remedy; or
(ii) the other party fails to remedy the breach within 20 Business Days of receiving notice requiring it to do so.
17.2 Termination for convenience
(a) We may terminate this Agreement at any time and without cause by providing you with not less than 1 month’s written notice of termination.
(b) You may terminate this Agreement at any time without cause by providing us with 1 Business Day’s written notice of termination, provided that the termination will become effective on the last day of the then-current Renewal Term.
17.3 Consequences of termination
(a) If this Agreement expires or is terminated for any reason:we will issue you with a refund in accordance with clause 9.1(d), if applicable;
(b) you must pay us any additional amount owing under clause 9.1(d)(ii)(D), if applicable;
(c) you must pay us:
(i) all outstanding invoices by the due date;
(ii) all other amounts outstanding as at the date of termination; and
(d) each party must deliver to the other party all Confidential Information of that party in its possession or control (or if requested by the other party, destroy it); and
(e) all rights that a party has accrued before termination continue.
17.4 Other remedies
The termination of this Agreement is without prejudice to either party’s rights under this Agreement or at Law.
(a) We may suspend the supply or performance of the Services at any time without notice to you:
(i) if you are subject to an Insolvency Event;
(ii) if you fail to pay any amount due to us under this Agreement when due; or
(iii) if we or our third party supplier reasonably suspects that you are in breach of your obligations under this Agreement.
(b) To the maximum extent permitted by Law, we exclude all liability to you if we suspend the Services under this clause 18.
(c) The suspension of the Services under clause 18(a)(ii) above may continue until we notify you that we have received full payment of the overdue amount.
(a) You acknowledge that we may collect Personal Information about you, your Users and Your Clients. We will take reasonable steps to comply with the Privacy Law when Processing such Personal Information.
(b) To the extent you obtain any Personal Information from us, you must Process such information in accordance with the Privacy Law (whether or not you are bound by it).
(d) You must:
(i) not, and you warrant and represent to us that you will not, Process or otherwise do or omit to do anything in relation to Personal Information that would cause us to contravene any Privacy Law;
(ii) not do or omit to do anything that causes an Notifiable Data Breach involving Personal Information in connection with this Agreement;
(iii) cooperate with us to resolve any complaint or inquiry made under any Privacy Law, or in relation to any request for access to Personal Information;
(iv) notify us immediately if you become aware of any breach or potential breach of your obligations under this clause, provide any details in relation to the failure that we request; and without limiting any of our rights under this Agreement, immediately comply with any reasonable direction from us with respect to remedying that breach.
19.2 Notifiable Data Breach
In the event that we have reasonable grounds to suspect or believe that an incident is a Notifiable Data Breach for both us and you, then, to the extent permitted by Law, we may by written notice to you:
(a) assume control of any assessment, remedial action, preparation of a statement and/or notification processes required under the applicable Privacy Law in respect of that Notifiable Data Breach; and
(b) require you not to undertake such assessment, remedial action, preparation of a statement and/or notification and to instead rely on the steps taken by us in connection with those actions in accordance with the relevant provisions in the applicable Privacy Law.
(a) Each party must:
(i) keep the other party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the other party;
(ii) take all reasonable steps to secure and keep secure all of the other party’s Confidential Information coming into its possession or control; and
(iii) not deliberately memorise, use, modify, reverse engineer or make copies, notes or records of the other party’s Confidential Information for any purpose other than in connection with the performance of its obligations under this Agreement.
(b) The parties agree that we are not required to treat De-Identified Data or Content Outputs derived from such De-Identified Data as confidential.
21 Dispute resolution
21.1 Notice of dispute
(a) Each party must follow the procedures in this clause 21 before starting court proceedings (except for urgent injunctive or declaratory relief).
(b) A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute.
(c) If the parties cannot resolve the dispute within 10 Business Days after notice has been given under clause 21.1(b) above, the dispute must be referred to the chief executive officers of each party or their respective nominees (in this clause 21, the Chief Executive Officers) for resolution.
(a) If the Chief Executive Officers cannot resolve the dispute within 10 Business Days after referral under clause 21.1(c) above, either party may (by giving written notice to the other party) require the dispute be referred for mediation.
(b) If the parties do not agree on a mediator or location within 5 Business Days of a party requesting mediation under clause 21.2(a) above, the mediator and location are to be nominated by the then current President of the Law Society of South Australia (Mediator).
21.3 Costs of disputes
(a) For the purposes of this clause 21, where more than one matter is in dispute, the amount involved in each matter in dispute must be separately assessed and the amounts will not be aggregated.
(b) The costs of the Mediator are to be borne equally by the parties.
(c) Subject to clause 21.3(b), each party must pay its own internal and legal costs in relation to complying with this clause 21.
(d) Nothing in this clause 21 prevents a party from commencing and prosecuting any application for urgent injunctive or other interlocutory relief.
(e) Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.
(a) All notices and consents must be in writing and sent to the following addresses:
(i) Notices to us must be sent to:
Phone: 1300 664 886
(ii) Notices to you will be sent to the address or email address that you provide to us when signing up for the Software Services.
(b) We may change our notice details by written notice to you. You may change your notice details by writing to us, or changing your address or email address via the Sherlok Platform.
(c) Notices sent:
(i) by hand, are taken to be received when delivered;
(ii) by post, are taken to be received by the third Business Day after posting, notwithstanding that a notice may be returned through the post office unclaimed; or
(iii) by email, are taken to be received at the time of confirmation of sending (except where the sender receives an automated message indicating that the email was not successfully delivered).
23. Force majeure
(a) If a party is unable to perform or is delayed in performing an obligation under this Agreement (other than an obligation to pay money) because of a Force Majeure Event, that obligation is suspended but only so far and for so long as it is affected by the Force Majeure Event.
(b) If the Force Majeure Event continues for a period of 60 Business Days, either party may terminate this Agreement immediately by giving the other party written notice.
(a) This Agreement is the entire agreement between the parties in relation to its subject matter.
(b) We may subcontract any part or all of the Services. Where we choose to do so, we remain responsible to you for the performance of the Services by our subcontractors as if those services were being performed by us.
(c) This Agreement cannot be varied except by written agreement between the parties.
(d) You must not assign this Agreement or any of your rights and/or obligations under this Agreement without our prior written consent, including by way of Change of Control in which case clause 5.7 will apply. If we do not consent to any such assignment, then this Agreement must either continue on its current terms or you can elect to terminate in which case clause 17.3 will apply.
(e) This Agreement is governed by the Laws of the State of South Australia and the parties submit to the exclusive jurisdiction of the courts of that State.
(f) If any clause or part of a clause is held by a court to be invalid or unenforceable:
(i) that clause or part of a clause is to be regarded as having been deleted from this Agreement; and
(ii) this Agreement otherwise remains in full force and effect.
(g) A party may only waive its rights under this Agreement by a clear statement in writing. Any failure by a party to exercise a right or insist on strict performance of any obligation under this Agreement shall not constitute a waiver.
(h) If this Agreement consists of a number of counterparts, each is an original and all of the counterparts together constitute the same document.
(i) This clause 24(i) and clauses 8 (Your obligations), 13 (Intellectual Property Rights), 15 (Liability), 15.5(b) (Indemnity), 17 (Termination), 19 (Privacy) and 20 (Confidentiality) survive the termination or expiry of this Agreement, as well as all other clauses which by their nature should survive the termination or expiry of this Agreement.
(j) Nothing in this Agreement (whether express or implied) is intended to create or constitute a relationship of partnership, agency, employment, trustee or other fiduciary relationship between the parties. It is the intention of the parties that any such relationship is expressly denied.
Schedule 1– Support Services
1. Help Desk
(a) During the Support Hours, we will provide you with access to a telephone and email support service (Help Desk) to enable:
(i) us to respond promptly to:
(A) all requests made to the Help Desk; and
(B) technical and User questions relating to the Software Services; and
(ii) you to report to us the Defects of which you become aware.
(b) We will also provide you with email support outside of the Support Hours.
(c) When reporting a Defect to us, you must provide all information relating to that Defect which we reasonably request.
2. Broker Success Manager
(a) During the Support Hours, we will provide you with access to a dedicated Broker Success Manager to enable:
(i) us to assist with
(A) broker onboarding
(B) ongoing training and support
(C) feature release and improvement updates
(D) managing feedback
(b) We will also provide you with email support outside of the Support Hours.